When cash bail violates the Constitution

Elizabeth Wydra, For the Express-News

October 10, 2017Updated: October 10, 2017 3:15pm

Photo: Eric Risberg /Associated Press

The Fifth Circuit Court of Appeals is weighing a case out of Harris County that asks whether demanding cash bail from poor people without houses to put up violates the Constitution’s equal protection guarantee. This is a San Francisco bail bond office.

The Fifth Circuit Court of Appeals is weighing a case out of Harris...

Maranda Lynn O’Donnell, a 22-year-old waitress and single mother living paycheck to paycheck, was arrested last year in Harris County on a misdemeanor charge of driving with a suspended license. Because she didn’t have $2,500 for bail, she was forced to spend three days in jail by a criminal justice system that is supposed to presume innocence until proven guilty.

The 5th Circuit Court of Appeals heard oral arguments recently in O’Donnell’s case to determine if Harris County’s money bail system denied her equal protection under the law because she was poor. The court’s ruling could affect not just Harris County, but cash bail systems elsewhere in Texas and around the country.

The case turns on the 14th Amendment, which was enacted after the Civil War and guaranteed to all people the liberty and equality envisioned by the Declaration of Independence a century earlier. The amendment reads, in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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During the debates over the 14th Amendment, its framers explained that it was designed to give to “the humblest, the poorest, the most despised … the same rights and protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.”

The Supreme Court has a long history of rulings against deprivations of liberty that affect people based on their financial status. The 5th Circuit should rule similarly in this case.

Nationwide, 34 percent of jail inmates in 2009 were jailed pretrial because they could not afford to pay bail. Today, 467,500 Americans who have been charged but not convicted are locked up because they are unable to raise bail. They are being punished for being poor.

And yet the Supreme Court held earlier this year that “a basic premise of our criminal justice system is that (o)ur law punishes people for what they do, not who they are.”

Historically, bail has been used to ensure pretrial liberty — to spare defendants punishment before conviction but ensure they show up for trial. Bail was not intended to keep the accused locked up until trial.

Defenders of Harris County, which detains 40 percent of all people arrested on misdemeanor charges before trial, have argued that cash bail is necessary to protect public safety and ensure defendants’ attendance at trial. But an array of alternatives — pretrial supervision, periodic drug testing and court date notifications, for example — achieve the same goals without violating the 14th Amendment guarantee of equal justice under the law.

Many states — Kentucky, New Jersey, Colorado, Maryland and West Virginia among them, plus the District of Columbia — have shifted from bail-based to risk-based release systems so that even those without financial resources may remain free before trial. Reforms such as these, the states have found, not only reduce the number of people detained pretrial but actually increase the appearance of defendants at trial, with no degradation to public safety.

O’Donnell was accused of a minor, nonviolent crime and was not a flight risk but still had to spend time in jail. That’s why the district court said, “For misdemeanor defendants unable to pay secured money bail, Harris County maintains a ‘sentence first, conviction after’ system that pressures misdemeanor defendants to plead guilty … because that is the only way to secure timely release from detention.”

The Harris County bail system denied O’Donnell “equal protection of the laws” by demanding a sum of money she did not have to secure the same freedom that others with more money could buy. Disparity in treatment based on wealth turns a constitutional right into a privilege only for those who can afford it. The 5th Circuit should strike down this arbitrary imposition of bail and rule in O’Donnell’s favor.

Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank.